University of Minnesota Law School Scholarship Repository Minnesota Law Review 1999 Executive Privilege and the Modern Presidents: In Nixon's Shadow Mark J. Rozell Follow this and additional works at: https://scholarship.law.umn.edu/mlr Part of the Law Commons Recommended Citation Rozell, Mark J., "Executive Privilege and the Modern Presidents: In Nixon's Shadow" (1999). Minnesota Law Review. 1894. https://scholarship.law.umn.edu/mlr/1894 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Minnesota Law Review collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. Executive Privilege and the Modern Presidents: In Nixon's Shadow Mark J. Rozellt Executive privilege is the right of the President and high- level executive branch officers to withhold information from Congress, the courts, and ultimately the public. It is now a well-established constitutional power--one with a longstand- ing history in American government, going back to the George Washington administration. Yet for most people, the mere mention of executive privilege conjures up images of Watergate and President Richard Nixon's attempt to use that doctrine to obstruct justice. It is therefore no surprise that most recently the Clinton administration ignited a firestorm of controversy by signaling its intention to use executive privilege in the Monica Lewinsky investigation to shield the content of presidential and White House staff discussions from the Office of the Independent Counsel. Media accounts made the most of the Nixon analogy, placing the White House in the difficult-but perhaps well de- served-position of having to defend its use of this little under- stood presidential power. Executive privilege is controversial in large part because it is never mentioned in the Constitution. In fact, the phrase "executive privilege" was not even coined until the Eisenhower administration. Historic precedents and judicial interpretation clearly have validated executive privilege. Presidents have secrecy needs and few would suggest that the power of inquiry, whether wielded by prosecutors or Congress, is absolute. Any claim of executive privilege is open to challenge and, as with t Ph.D. 1987, University of Virginia. Associate Professor of Politics, The Catholic University of America. Author of eight books, including EXECUIivE PRIVILEGE: THE DILEMMA OF SECRECY AND DEMOCRATIC ACCOUNTABILITY (1994). I appreciate the helpful suggestions of Louis Fisher and Morton Rosenberg. 1069 1070 MINNESOTA LAW REVIEW [Vol. 83:1069 other governmental powers, it may be subject to a balancing test when weighed against demands for access to information. There is a long history of disputes over presidential claims to secrecy. Indeed, every President since Washington has ex- ercised some form of what we today call executive privilege. Executive privilege is an accepted doctrine when appropriately applied to two circumstances: (1) certain national security needs and (2) protecting the privacy of White House delibera- tions when it is in the public interest to do so. The first case of an executive privilege dispute nicely illus- trates the core issues. In 1792 Congress requested from the Washington administration information regarding the failure of a U.S. military expedition. Congress specifically requested White House records and testimony from presidential staff fa- miliar with the event.' Washington convened his Cabinet to discuss the possibility of withholding information requested by Congress. Thomas Jefferson recorded in his notes of the meeting that the Cabinet had all agreed that a President has a right to withhold infor- mation when it is in the public interest to do so. 2 While even- tually Washington decided to cooperate with the Congress, he had laid the groundwork for later Presidents to claim executive privilege. On two other occasions during his presidency Washington made a similar determination that Presidents have a right to secrecy in some matters and thus refused requests for informa- tion. Ultimately, he stood by those refusals. In each case, Washington based his decision on the standard of whether con- cealing the information was justified by a need to protect the public interest. Washington's actions are particularly noteworthy because the nation's first President was very conscious of the fact that everything he did established a precedent for the office. At no point did he believe that a President could withhold informa- tion to protect himself from politically embarrassing informa- tion or to cover-up conversations about potential wrongdoing in the White House.3 1. See 3 ANNALS OF CONGRESS 493 (1792). 2. See PAUL FORD, 1 THE WRITINGS OF THOMAS JEFFERSON 189-90 (1892). 3. A more detailed treatment of the Washington administration exam- ples is in MARK J. ROZELL, EXECUTIVE PRIVILEGE: THE DILEMMA OF SECRECY AND DEMOCRATIC ACCOUNTABILITY 32-36 (1994). See also Mark J. Rozell, 1999] UNITED STATES V. NIXON 1071 Controversy occasionally ensued when Washington's suc- cessors exercised this presidential power. For many years there existed a widespread consensus that the President may withhold information to protect the national interest. Over time, that came to mean shielding materials relating to na- tional security or maintaining the privacy of internal delibera- tions over official governmental matters. President Richard M. Nixon gave executive privilege a bad name, however, when he invoked these legitimate defenses in a circumstance where clearly the President was trying to conceal White House wrongdoing. His actions and the timely publica- tion of scholar Raoul Berger's book, Executive Privilege:A Con- stitutional Myth,4 destroyed the consensus that executive privilege is legitimate. Many began to question whether the President ever could legitimately make such a claim. Every President who has asserted executive privilege since has been subject to unflattering characterizations that he is engaging in Nixonian tactics to conceal and deceive. An unfortunate consequence of this turn of events has been the attempts by Nixon's successors to conceal even their use of executive privilege. A common tactic is to devise some other phrase or use some other power to justify withholding in- formation when an executive privilege claim would have been appropriate. This essay describes and analyzes executive privilege con- troversies in the post-Watergate era. As the following reveals, when it comes to executive privilege, the modern Presidents have had to walk in the shadow of Richard Nixon. His impact on this constitutional doctrine remains profound and to this date the proper balance in the exercise of executive privilege has not been restored. Presidents Ford and Carter generally avoided using executive privilege and protected presidential secrecy through the exercise of other sources of authority in or- der to avoid the Nixon analogy. President Reagan tried to reaf- firm this power, but he ultimately failed to stand his ground against Congress. President Bush crafted a successful strategy of concealing his use of executive privilege to avoid controversy and protect his prerogatives. President Clinton is the first post-Watergate President not to shy away from executive Abusing the Privilege, LEGAL TIMEs, Mar. 30, 1998, at 23-26; Mark J. Rozell, ClearMisuse of the Privilegeof Rank, WASH. POST, May 18, 1998, at A17. 4. RAOUL BERGER, EXECUTIVE PRIVILEGE: A CONSTITUTIONAL MYTH (1974). 1072 MINNESOTA LAW REVIEW [Vol. 83:1069 privilege, although his approach has spanned the spectrum from claiming to protect a constitutional principle to denying that the President has anything to do with asserting this power. As the following post-Watergate events make clear, there is a need to reestablish the legitimacy of executive privilege and an understanding of its proper scope and limits in our con- stitutional system. These goals cannot be achieved through statutory law, but rather, through a return to the constitu- tional Framers' understanding of the separation of powers. I. FORD: PROCEEDING WITH CAUTION Because of the Watergate taint, Ford proceeded cautiously on executive privilege. He never adopted a formal policy on ex- ecutive privilege. Ford avoided the phrase "executive privi- lege" as much as possible and frequently cited statutory authority as the basis for keeping secrets. Ford understood that he would fail in his efforts to withhold information if he openly claimed executive privilege. Ford carefully chose only a few executive privilege battles with Congress-ones that he considered to be the most important secrecy issues in his ad- ministration and that he thought he could win. Certain members of the Ford administration wanted to de- velop procedures for handling executive privilege controversies. Certain members of Congress sent letters to the President re- questing that such procedures be issued. White House staff composed a draft executive order on executive privilege, but Ford never issued the order. Rep. John Moss (D-CA) requested that Ford adopt a policy on executive privilege in which the constitutional doctrine could be "invoked only by the President or with specific presidential approval in each instance."5 Moss noted that he had received commitments from presidents Kennedy, Johnson, and Nixon to limit the use of executive privilege to personal claims by the President. 6 Ford never responded to the request. Deputy Assis- tant to the President, Max L. Friedersdorf, responded that Moss's letter would be shared with the president's advisers.7 5. Letter from Rep. John E. Moss to President Gerald R. Ford (Aug. 15, 1974) (available at Gerald R. Ford Library, Ann Arbor, Michigan [Hereinafter Ford Library] in Folder: Executive Privilege (2), Box 13, Philip W. Buchen Files). 6. See id. 7. See Letter from Max L. Friedersdorf to Rep. John E. Moss (Aug. 16, 19991 UNITED STATES V. NIXON 1073 Ford also received letters asking for policy clarifications on executive privilege from Reps. John N. Erlenborn and William S. Moorhead and from Senators Sam Ervin, William V. Roth, and Edmund S.